SURAJ PARKASH GUPTA AND OTHERS v. STATE OF J & K AND OTHERS

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A within their quota, after due regularisation. Such service outside promotee quota cannot count for seniority. Service of promotees which is regularised with retrospective effect from date of vacancies within quota counts for seniority. However, any part of such ad hoc/stop gap or even regular service rendered while occupying the direct recruitment quota cannot be counted. Seniority of promotees or transferees is to be fixed as per quota and from B date of commencement of probation/regular appointment as stated abbve. Seniority of direct recruit is from the date of substantive appointment. Seniority has to be worked out between direct recruits or promotees for each year. We decide point 3 accordingly.

C Point 4 :

direct recruits cannot claim appointment ftvm date of vacancy in quota before their selection :

We have next to refer to one other contention raised by the respond- D ents-direct recruits. They claimed that the direct recruitnient appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under direct recruitment quota.

This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in Sen'ice Jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled. In N.K. Chauhan V. State of Gujarat, (1977] 1 sec 308 (at p.321) Krishna Iyer, J. stated :

G "later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service."

Again, in A. Janardlzana v. Union of India, (1983] 2 SCR 936, it was held that a later direct recruit cannot claim seniority from a date before his birth H in the service or when he was in school or college. Similarly it was pointed

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-· out in A.N. Pathak v. Secreta1y to the Govemment, [1987] Suppl. SCC 763 (at p.767) that slots cannot be kept reserved for the direct recmits for A

retrospective appointments.

What we have stated in points I to 4 in respect of ad hoc Assistant Engineers applies to ad hoc Assistant Executive Engineers, to the extent of the principles laid down, are applicable. We say this in view of point 2 that B was framed by the High Court covering both the cadres. We hold on Points 1 to 4 as stated above.

Point 5:

The relief: c In view of our decision on Points 1 to 4, the appeals will be governed by our findings on points 1 to 4. We further direct as follows. The Public Service Commission and the Government will complete the exercise of regular appointment of the promotees - Assistant Engineers and Assistant D Executive Engineers within four months from today. Till such time the stay of promotions granted by this Court will operate. After passing orders under Rules 15 or 23, as the case may be, and in conformity with quota and year- wise adjustment of quota, a fresh provisional seniority list will be prepared in the category of Assistant Engineers. Objections will be invited and the final seniority lists will be issued within two months of last date fixed for filing objections. The stay of promotions granted by us will stand vacated once the provisional seniority list of Assistant Engineers is prepared. Promotions can be made, subject to review. After receiving objections, the provisional list shall be finalised as statefi above and a-final seniority list will be issued. Pending issue of final seniority list of Assistant Engineers there will be no reversions of Assistant Engineers already promoted as of today. Once the list is finalised, there will be a review of all promotions to the category of Assistant Engineers in respect of all promotions made to that· category. Thereafter, a provisional seniority list will be issued in the category of Assistant Executive Engineers within one month of the final list of the G Assistant Engineers and objections will be called for. The stay granted by us of further promotions of Assistant Executive Engineers shall then stand vacated. There will be no reversions. of Assistant Executive Encineers ~

already promoted till final seniority list of Assistant Executive Engineers is published. Their fmal list will be published within two months after the last date for filing objection to the provisional list. H

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A certain general directions to the State of J &K for the future : •· Apart from the above specific directions, we think this is an occasion to issue certain general directions to the State of Jamrnu & Kashmir. As pointed out earlier, the State of Jamrnu and Kashmir has been tlouting basic rules of recruitment by granting relaxation of the rules of direct recruitment B as also the rules requiring consultation wi~ PSC/DPC for promotions/ recruitment by transfer. In order to ensure that this is not done in future, Qie , following directions shall also issue. / ~ (A) The State of Jammu and Kashmir shall appoint a high level c Committee within a month from today to go into the question as to whether in any department in Government service, direct recruitment of ;existing vacancies has not been made and if there was unreasonable delay, the State will consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. But it will ensure that no promotees are put in the direct recruitment quota, temporarily or on stop gap or ad hoc D basis unless simultaneously proceedings are initiated for direct recruitment through the Service Commission. The Committee will recommend in what manner the direct recruitment could keep pace with promotions as contem- plated by rules.

E (B) Similar, the Committee will find out in which departmeJilt the ad hoc/stop-gap promotees are languishing without their cases being referred to the Service Commission/DPC for regularisation within their quota.

(C) The State of Jarnrnu and Kashmir Will ensure that no relaxation of basic recruitment rules is made for direct recruitment through P.~.C., or F for purposes of regular promotions/recruitment by transfer. The recommen- dations of the Committee referred to above may be considered by Govern- ment and implemented in accordance with the rule and in accordance with bw without unreasonable. delay.

G The appeals are disposed of as stated above. There will be no order as to costs.

K.K.T. Appeals disposed of.